How to Avoid Heavy 6H Fines
The Environmental Protection Agency (EPA) has been preparing the collision repair industry for its National Emission Standards for Hazardous Air Pollutants 6H rule for years now. Since the Jan. 10 compliance deadline has come and gone, it’s now time for the EPA to enforce the rule. Steven Schillinger, president of GRC-Pirk Management Co. in Reno, Nev., says this is the first time that the EPA has engaged, trained and reached out to other agencies to help enforce a regulation.
FenderBender’s Andrew Johnson sat down with Schillinger to talk about how the EPA plans to enforce the regulation, and what it could mean for your shop if you’re not prepared when an enforcement agency comes knocking on your door.
The compliance deadline for the EPA 6H rule has passed, yet there are still a surprising number of shop owners who are confused about the regulation. There’s certainly a lot of information available, so what is causing the continued confusion?
One reason is because paint company sales representatives and jobbers have been a little disingenuous, and have micro-focused on a few aspects of the 6H regulation. Some shop owners have been misinformed as a result.
Paint companies have products out there, called screened products, which do not have the hazardous air pollutants (HAPs) that are targeted by the 6H rule. Some paint companies and jobbers have told shops they won’t be subject to the 6H rule and won’t have to worry about it at all if they buy the company’s screened product.
That’s wrong information. Anybody in the collision repair business is subject to enforcement under the 6H rule. Shops have two choices: They can either file a petition for exemption, or they can file compliance notification. Either way, shops do still have to file some form of paperwork and cannot just ignore the rule altogether. Shop owners are not necessarily getting the information they need from the correct sources.
From what I understand, exemption from the 6H rule is difficult even if shops are using one of those screened products because repair facilities spray many other types of materials in addition to paint.
Shop owners need to remember that compliance for this rule is not just about the paint they use. It includes any material that flows through their spray gun. Shops use clear coats, under coatings, bed coatings, and all sorts of other things that have HAPs in them. Shops that spray those types of materials are going to get caught by the EPA if they try to slide under the radar.
And local EPA agencies can add additional requirements to the rule if they choose. Some local branches in certain areas of the country have added requirements that make it so that shops cannot be exempt from the rule no matter what they do.
What happens if a shop owner claims to be exempt from the rule, but really is not?
Collision shop owners have to sign an affidavit that says they are exempt from the rule. Once that happens, shop owners are subject to criminal prosecution if they are found to not be exempt when they are investigated by an enforcement agency. That’s because they have knowingly and willfully violated a rule of the Clean Air Act. It’s called “willful intent.”
I suspect many shop owners believe they might be able to remain noncompliant without being noticed by the EPA.
That is a very common mindset on behalf of shop owners. In fact, it’s estimated that only about 50 percent of collision repair shops are compliant with the rule right now. The compliance rate is even less in other industries that are also targeted by the regulation. That’s likely because there haven’t been any huge publicized enforcement campaigns yet to serve as warnings. It’s just like paying taxes; everybody waits until the 11th hour to do it even though they have known about it well in advance.
Enforcement campaigns must be coming soon, since we are now well past the official compliance deadline.
There’s a bunch of shops that have already been investigated. Those investigations started after the compliance deadline last January.
A lot of those shops have been investigated because they filed for an exemption; doing so automatically triggers an investigation of the business. In the New England states, a number of shop owners just ignored the requirements of filing for an exemption. The EPA knew about that, so the agency went ahead and investigated those shops.
In some of those shops, the EPA took a look at the shop’s spray booth filter and found some of the HAPs targeted by the rule. Now those shop owners have to somehow prove they didn’t spray any materials with the HAPs after the compliance deadline, which is very difficult to do.
It sounds like those shop owners learned the importance of being compliant the hard way. What kinds of penalties are we talking for a violation like that?
At the federal level, the penalty is a $37,500 fine per day, regardless of the size of the business. The state of California has added another $25,000 fine per day on top of that. So we’re talking about huge fines. There aren’t many people who can weather that kind of monetary penalty.
Not only do shops receive a large fine when a violation is discovered, but that must make them susceptible to being inspected again.
When a shop is inspected and a violation is found, the shop will receive either a notice of violation or a notice to comply. In either case, the shop operator has to file notice that they’re going to take specific steps to correct the violation. Those shops will always be inspected again. Typically, shops will have about a 30- to 45-day period of time between the initial inspection and the date when the enforcement agency will come back to ensure the shop has fixed the problem.
If the shop operator has not fixed the problem by the time the business is inspected again, the fine can be tripled and the shop could be shut down. The enforcement agency will literally padlock your door.
Investigating and re-investigating collision shops is certainly a huge undertaking. How realistic is it to think that the EPA has the manpower to do this on its own?
It’s absolutely not realistic at all. Under the Clean Air Act and the Clean Water Act, the EPA has to inspect every source of pollution, which includes body shops, at least once every three years.
There’s no way they can do it; there just aren’t enough people to go around.
So the EPA must be seeking assistance to enforce this law. What organizations has the EPA reached out to?
The EPA is delegating this work, and using other agencies to help enforce the rule. The EPA is working with local fire departments, building departments and the Occupational Safety and Health Administration (OSHA). All three of those entities have been educated to enforce the rule.
But how will all of those organizations work together since each one has their own strategies for enforcing laws?
The jury is still out on how that will work. They’re very tight-lipped about their processes.
An issue that’s being discussed is how these agencies will be allowed to enforce this. If a violation is found, the EPA will issue a flat-rate fine to the shop and list all of the problems that were noticed. OSHA, on the other hand, typically issues a separate penalty for each individual violation. So if a shop has multiple violations, the fines incurred could become more extensive if OSHA is the agency that does the inspection.
There are also a few crossover laws that come into play. For example, OSHA already has laws in place that regulate chromium, which is one of the HAPs targeted by the 6H rule. So OSHA is battling with the EPA over which code they’re going to follow.
There must be some uniformity between the various agencies in how they will enforce the 6H rule. There can’t be different penalties just based on who actually does the investigation, right?
That’s what you would think. Unfortunately, since this is the first regulation in which there are multiple agencies enforcing it, the answer to that is still unknown. Right now, a shop could experience different penalties simply based on which organization they are contacted by.
How will those other agencies find the time to do this?
They are going to be in shops all the time anyhow. This will just become another aspect of their inspection routines as they visit collision repair businesses.
For example, shops have to renew their building license and business license every year. The 6H rule will now become part of the local building department’s enforcement procedure.
They have been trained to investigate collision repair shops for 6H compliance, and will not renew a shop’s business license if a violation is found. That’s one other way shops could experience enforcement penalties.
Investigating all of the roughly 40,000 body shops in the country still sounds like quite the task even with multiple organizations lending a hand.
That’s right. The EPA is going to rely on whistleblowers to help them out. Whistle blowing on other businesses is kept secret and confidential. There is a website people can use to turn in others for noncompliance issues: epa.gov/compliance/complaints.
So what can shop owners expect if an investigator comes to their business?
The enforcement agency is supposed to follow a procedure of identifying who they are and why they’re at your business. They will often come around unannounced.
The first thing an inspector will ask, regardless of the enforcement agency they represent, is whether your painters have been trained on the 6H rule. Whether the shop is exempt from the rule or not, it’s in a shop owner’s best interest to train their employees so they can answer “yes” to that question.
The rest of it is about making sure you have all of your purchase records. Have your material safety data sheets on hand for your paint materials, paint booth filters and spray guns.
Once shop owners either become compliant with the 6H rule, or successfully file for exemption, are they compliant forever, or are there other HAPs to pay attention to?
The 6H rule only targets the first five HAPs out of 30 that will begin to be regulated within the next 10 years. Under the Clean Air Act, 188 HAPs were identified. The EPA has reduced that number to what they refer to as the “dirty 30.” Collision shops are not going to be able to be exempt from all of them.
What do repairers get in return for their compliance efforts?
The 6H Rule really is good for the industry. The HAPs that are targeted under the rule are carcinogenic constituents; its dangerous stuff. Shop operators could end up with a personal injury lawsuit on their hands if they ignore their expectations under the regulation.
Being in compliance protects your employees, your environment, your neighborhood and your community members. Why would anybody not want to do that?